Trademarks and brand marks

Trademarks, especially when used as the primary logo, are usually one of the most distinctive visual cues for a brand. A trademark's essential function is to distinguish goods or services of one company from another. A trademark must therefore be of distinctive character and can't just be descriptive of the goods or services sold. A mark can be inherently distinctive, or it may, through use, acquire a distinctive character, initially lacking, and thus be registered as a trademark.

The Australian Government's IP Department defines a trademark as

A trade mark can be a letter, number, word, phrase, sound, smell, shape, logo, picture, aspect of packaging or any combination of these.

It is used to distinguish goods and services of one trade from those of another. This means you can't register a trade mark that directly describes your goods (e.g. radios) and services (e.g. electrician).

While it is difficult to register a geographic name or surname, someone who has used one extensively in the marketplace for a considerable period of time may be able to achieve registration.

But what constitutes a distinguishing mark isn't always so cut and dry. Consider the ongoing trademark dispute between Australian wine company Casella Wines and US based The Wine Group. Casella own the export brand Yellow Tail, who use a wallaby as their logo on their wine labels, while The Wine Group use a kangaroo on their label Little Roo.

How Distinguishable are Kangaroos and Wallabys?

Casella argue that to US consumers, the difference between a wallaby and a kangaroo are nil. They're just two interchangeable Australian marsupials. They accuse The Wine Group of "piggy backing" on their brand, launching with a label that is uncannily close to Little Roo.

Casella Wines managing director John Casella is quoted as saying, "There are probably three or four thousand Australian animals out there and they had to pick the kangaroo."

On their side, The Wine Group are adamant that a wallaby and a kangaroo are entirely separate animals who's usage won't confuse north American consumers. Casella argues that Casella is doing well in the US, and that having the brand equity they do is helping them compete with Little Roo. But he asserts that piggybacking won't succeed for Little Roo in the long term. "You can build sales that way, but you cannot build brands."

Brands Going International

Registering a trademark gives you exclusive legal right to use it (and license or sell) within the country for the goods and services for which it is registered. However this case highlights some of the issues that can be raised when brands enter international markets. Some brand names and logo marks are culturally specific, and don't always translate as well in the context of other markets.

Focus on Brand Equity

While Australians may easily differentiate between a kangaroo and a wallaby, American consumers may not be able to. These problems are not always easily anticipated, so the best advice here is to undertake exhaustive international research into logos, trademarks, and brand names on an international scale from the outset. But perhaps more importantly, focus on your brand equity. While distinguishing animals may be challenging, an instantly recognisable brand name will be easily recognised in a crowded market, and will have the strength to ride out rough moments - even if a change of logo mark is required.